In August 1989, the Second Circuit issued its opinion which, inter alia, granted Official leave to replead its RICO claims. Official Publications, Inc. v. Kable News Co., 884 F.2d 664. According to Mr. Fredericks, in light of the decision of the Second Circuit and the dispute as to the ability of Herbert to pursue the Official Action, Herbert agreed to dismiss the Official Action. Fredericks Affirmation P 10. At the same time, Kable agreed to dismiss the Kable Action. Fredericks Affirmation P 10. Both actions were "dismissed with prejudice." Affidavit of I. Michael Bayda, Esq. dated May 21, 1992 P 8; Official Publications, Inc. v. Kable News Company, Inc., Index No. 11348/90 (N.Y. Sup. Ct. July 20, 1990).

In February, 1990, Official filed its second amended complaint. Kable then answered and moved for summary judgment on the grounds that no material issue of fact existed and that as a matter of law defendants were entitled to judgment because the discounts granted had been authorized by Official. Defendants' second motion for summary judgment was denied. In May, 1992, Kable again moved for summary judgment based on the dismissal of the Official Action with prejudice.

Discussion

A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987); Exxon Corp. v. Central Gulf Lines, Inc., 780 F. Supp. 191 (S.D.N.Y. 1991). The moving party bears the initial burden of demonstrating the absence of a material issue of fact. Exxon v. Central Gulf Lines, Inc., 780 F. Supp. 191. Once the moving party has met this burden, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The Court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243, 106 S. Ct. 2505, 2506, 91 L. Ed. 2d 202 (1986). In the instant action, there is no dispute as to the facts presented, and for the reasons set forth below, as a matter of law, summary judgment must be granted to the defendants.

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